Amicus Curiae Brief for Richard Isaac Fine

7/30/2019 Amicus Curiae Brief for Richard Isaac Fine

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD I. FINE,

Appellant and Petitioner,

vs.

SHERIFF OF LOS ANGELES

COUNTY, et al,

Appellees and Respondents

Case No. 09-56073

D.C. No. 2:09-cv-01914 JFW (CW)

AMICUS CURIAE BRIEF

DANIEL HENRY GOTTLIEB

Professor Emeritus in Mathematics

Purdue University

Visitor, UCLA

3516 VIA DOLCE

MARINA DEL REY

CA 90292

Amicus Curiae Brief Case No. 09-56073Saturday, September 19, 2009

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Table of Contents

Reason for Amicus Curiae Brief 3

Collateral Estoppel 3

Signs of Sophistry 4

Honns Decision 5

Fines Blogonaut Comment 5

Honns Opinion 7

Mitchell strains to stay on the DiFlores case. 9

Mathematicians comment on Mitchells Strained Argument 10

Three Paragraph Waldo 11

Aggravated Ambiguity 11

Count 17 12

Harsh and Severe 12

Ability to be Impartial 13

Marina Strand Colony II vs LA County et al 14

Conclusion 19

PROOF OF SERVICE 21


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Reason for Amicus Curiae Brief

Re Richard I. Fine vs California State Bar, Los Angeles County/Del Rey Shores Joint

Venture, and Judge David Yaffe.

Honorable Judges,

Please forgive my use of the first person. I am a property owner in the Marina StrandColony II Homeowners Association, MSCII. It was MSCII vs County of Los Angeles andthe party of interest, Del Rey Shores Joint Venture/Del Rey Shores Joint VentureNorth,which led to the contempt citation against our counsel, Richard I. Fine, by judgeDavid Yaffe (Superior CourtCase number BS109420). Also it was MSCII as well as theCoalition to Save the Marina whose causes were harmed by the disbarment of theircounsel, Richard I. Fine, (State Bar Court Hearing Department Los Angeles, casenumber 04-O-14366).

I am also a retired mathematics professor. I have been doing research and teaching inmathematics since 1962. I have published over 60 papers in various areas ofmathematics: Point set and algebraic topology, combinatorics, robotics, math history,and mathematical physics. You can find a summary of my work at my website .

Collateral EstoppelThe reason why I mention my mathematical expertise, is that I want to critique thedoctrine of collateral estoppel, which I take to mean that one cannot re litigate already

decided cases. This doctrine plays a major role in the Fine disbarment trial. It is animportant doctrine needed to prevent endless litigation, but it rests on a very unstablefoundation.

In mathematics, it is known that if you have a false proposition, you can proveanything you want with it, both statements that are true and statements that are false.This is an abstract result, but we see it arising in the practice of mathematics where youuse a result you think is true and suddenly there are many nice interestingconsequences. This occurs with a rush of excitement, then a slow suspicion that it is toogood to be true, then the painful search for the error itself or for a false implication.Finally a careful study of the false argument so that you never make that error again.

I think the doctrine of collateral estoppel can lead to burst of unjust results when thereis an originating incorrect judgement and that is what happened in the State Bardisbarment of Fine and also in the subsequent part of the MSCII vs Los Angeles Countyet al. I will tell the story in a historical manner from my perspective.

The MSCII is west of the Shores Project, proposed by Del Rey Shores. Unknown toMSCII, the Shores had signed a lease with the County and planned to put 5 story


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http://www.math.purdue.edu/~gottliebhttp://www.math.purdue.edu/~gottlieb


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apartments on the edge of Dell Alley less than 75 feet from my front door. Theirbuildings would be up to 100 feet tall. The Shores gained approval from the DesignControl Board, without anyone of us knowing about the project. Then in December2005, they published the Draft Environmental Impact Report, DEIR, and noticed us thatthey were going to ask the Regional Planning Commission for approval early in 2006.

We were referred to Attorney Richard I. Fine, who said he could get us through thepermit process in front of the regulatory boards and the Board of Supervisors, BOS, andthat we would lose. Then he would set up an appeal for us, all for $25,000, The goingrate was $250,000 and we would still lose. Mr. Fine said he needed help, the BOS coulddo what it wanted, but it had to have accurate information for their decision. Thus weshould look for flaws in the EIR. We should learn about sewers and shadows and trafficstudies. We couldnt raise any issue in an appeal unless it was mentioned in ourcomments to the EIR. We engaged Fine as our counsel in late January. 2006. Twoweeks later, unbeknownst to us, the State Bar issued its Notice of DisciplinaryComplaint, NDC, against Fine in early February 2006.

I started going to the public library where the Shores DEIR was kept and began byreading the traffic study because it had a large mathematical content to it. I learned thesubject and found errors. Fine suggested I look at the shadow study; I found errors inthat. Meanwhile, technology was changing rapidly, Google search became better andbetter. Google satellite maps became available to the public, and I was able to measuredistances very accurately. I was able to search the countys ordinances and the LocalCoastal Plan for the relevant laws. I found the counsel to the DCB failed to mention theordinance that gave the DCB the duty to consider impacts of projects on scenic viewsand traffic and massing. When the DCB learned from the public their powers, theythreatened to actually turn down projects. In response, County Staff found aninconsistency, whichthey were unable to explain clearly, and they got the BOS to

remove most of the DCBs powers.

Signs of SophistryI began to recognize sophistry by certain signs. I looked in other EIRs for examples. Ibegan naming the signs. For example, a 34 story condo building was proposed onLincoln Blvd. just east of Marina del Rey. It is on the most congested road stretch in LosAngeles. Twenty five percent of the exiting traffic was estimated going north, But theonly exit from the condos forced traffic to move south on Lincoln. I looked for adescription of how the north going traffic would eventually start going north. Finally Ifound an arrow on a key map which looked like a fishhook. It was at an intersection on

Lincoln. After some time I guessed it meant U-turns. The word U-turn was nevermentioned in the EIR as far as I could see. Certainly not in the traffic study. None of thethousands of arrows in the traffic study, except one, looked like a fishhook. The nameWaldo came to mind. However the Waldos of sophistry are not always dressed in thesame outfit as occurs in the childrens puzzle, Find Waldo.

Such an example of a Waldo is a three paragraph word queering Waldo. Wordqueering is taking two words with overlapping meanings in one context and quite


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different meaning in another context. The are mentioned as synonyms in oneparagraph, and then used together in a paragraph with a quite different context wherethe result is a misleading assertion. For example, the notice of the meeting of the DCBstated in one paragraph that the wall would be replaced and in the third paragraph thatso thedimensions of the building will remain the same imply the wall remains in the

same place while the phrase fits in the existing footprint will be used to justify whatactually happened; the wall was move five feet into the right of way of Del Alley.

Another Sign of Sophistry I call Coconut Roading, which is surreptitiously changing thewording of public documents. This is named after the type of this sophistry on thehighest level of Federal laws. See the article by George Will: http://www.washingtonpost.com/wp-dyn/content/article/2008/02/08/AR2008020802557.html

Honns DecisionWhen the State Bar Court published their decision in October 2007, I read the decisionwritten over Judge Honns name. Now Honns opinion has signs of sophistry. He foundhe didnt believe Fine on anything, and yet he didnt seem to offer a specific untruth. Atthis time, there were blogs on the internet, and I found one which agreed with my takeand which noted that usually in the opinion there is a clear statement of the partiespositions. I was unable to find a clear description of Fines position. Below is aparagraph of Honns that I regarded as a sign of sophistry. (my emphasis)

page 4 / 76 Matter of Fine State Bar 04-O-14366 Judge HonnB. Credibility Determination

This court has serious difficulty believing respondent. After carefully

considering, among other things, respondent's demeanor while testifying; the manner in

which he testified; the character of his testimony; his interest in the outcome in thisproceeding; and his capacity to perceive, recollect, and communicate the matters on

which he testified, the court finds that respondent's testimony in this proceeding

repeatedly lacked credibility, if not candor.

Fines Blogonaut CommentOne blog which I found is Blogonaut. This is a legal blog which wrote an articleimplying Fine was a Bully while describing Honns decision. there are 14comments on the article. The first comment is Fines. It describes quickly what hethought was the proper evidence not included in the article. You can find it in thelink below.http://blogonaut-blogonaut.blogspot.com/2007/12/bar-court-recommends-disbarment-for.html

The part that I focused on was Fines fifth and sixth points which I insert below.


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http://blogonaut-blogonaut.blogspot.com/2007/12/bar-court-recommends-disbarment-for.htmlhttp://blogonaut-blogonaut.blogspot.com/2007/12/bar-court-recommends-disbarment-for.htmlhttp://blogonaut-blogonaut.blogspot.com/2007/12/bar-court-recommends-disbarment-for.htmlhttp://blogonaut-blogonaut.blogspot.com/2007/12/bar-court-recommends-disbarment-for.htmlhttp://blogonaut-blogonaut.blogspot.com/2007/12/bar-court-recommends-disbarment-for.htmlhttp://blogonaut-blogonaut.blogspot.com/2007/12/bar-court-recommends-disbarment-for.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2008/02/08/AR2008020802557.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2008/02/08/AR2008020802557.htmlhttp://blogonaut-blogonaut.blogspot.com/2007/12/bar-court-recommends-disbarment-for.htmlhttp://blogonaut-blogonaut.blogspot.com/2007/12/bar-court-recommends-disbarment-for.htmlhttp://blogonaut-blogonaut.blogspot.com/2007/12/bar-court-recommends-disbarment-for.htmlhttp://blogonaut-blogonaut.blogspot.com/2007/12/bar-court-recommends-disbarment-for.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2008/02/08/AR2008020802557.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2008/02/08/AR2008020802557.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2008/02/08/AR2008020802557.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2008/02/08/AR2008020802557.html


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Fifth, it omitted to tell the reader that Commissioner Mitchell ordered

the removal of approximately $1.6 million from the Di Flores Class

Settlement Fund in violation of the Section 5, Paragraph 5.2 of the

Stipulation of Settlement and Final Judgment (See Joint Trial Ex. 180),through approving the purchase of all claims held by Fine against

Bruce E. Mitchell, the Superior Court and other judicial officers in

the name of the class members for $40,000.00 with another $40,000.00

to be paid to defend the purchase in violation of Section 5, Paragraph

5.2 (b), approving $300,000.00 to be paid to specially appointed class

bankruptcy counsel to defend the purchase in violation of Section 5,

Paragraph 5.2(b) approving $1.6 million in attorneys fees to plaintiffscounsel on the condition that they would withhold 35% (or

approximately $566,464.65) to fund the defense of the purchase" in

violation of Section 5, Paragraph 5.2 (b), (of the $1.6 million of

attorneys fees, the additional violations of the Stipulation of

Settlement Section 5, Paragraph 5.2(a)(i)-(iv) were approximately

$1,075,000.00 in Individual Fees and Costs in violation of Paragraph

5.2 (a)(i)-(iv) and approximately $301,342.22 in Attorney Fee ReserveFund in violation of Paragraph 5.2 (a)(I)-(iv));

Sixth it omitted to tell the reader that Commissioner Mitchell, based

upon the accounting presented by the Disbursing Agent for the March

13, 2006 hearing in the DiFlores case, illegally paid, Byron Moldo who

is also the receiver and notice giver, an estimated $510,172.00 forperforming attorneys work, acting as a receiver, and a notice

giver in violation of Section 5, Paragraph 5.2(b) of the Stipulation of

Settlement, illegally paid, Diane Karpman, of Karpman & Associates,

an estimated $55,980.00 as an ethics expert to assist plaintiffs


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attorneys in violation of Section 5, Paragraph 5.2(b) of the Stipulation

of Settlement, illegally paid, Bernard George Investigations an

estimated $10,146.00 as an investigator to investigate Fine in

violation of Section 5, Paragraph 5.2(b) of the Stipulation ofSettlement, illegally paid, Joel Rudof an estimated $7,939.00 to

contact Richard I. Fines clients in violation of Section 5, Paragraph

5.2(b) of the Stipulation of Settlement, illegally paid, Tovar & Cohen

$800.00 to retain a medical expert for the Court in violation of Section

5, Paragraph 5.2(b) of the Stipulation of Settlement, and illegally paid,

$768.00 to purchase a scanner for an unstated purpose in violation

of Section 5, Paragraph 5.2(b) of the Stipulation of Settlement (SeeJoint Trial Ex. 180);

Honns OpinionIt was obvious to me that Fine was making detailed accusations in plainlanguage which could either be right or wrong and that it shouldnt be hard todetermine which. So I decided to go to the State Bar in Los Angeles and read the

transcripts of the trial Matter of Fine State Bar 04-O-14366 Judge Honn. Therewere seven volumes. In the end, I looked over the last five and I bought the fiveCDs and listened to the last five days of the trial.

I wanted to concentrate on the Counts which Honn found in favor of Fine. Themost obvious ones were Counts 2 and 4. which charge Fine of accusing Mitchellof misappropriation of the DiFlores settlement monies without supplyingevidence(Count 2) and that the accusations of misappropriations were false(Count 4). The judge combined the two Counts and found that the State Barprosecutors had not proved their case. Nonetheless, Honn stated he really didnt

believe Fine at all. I include the Counts 2&4 below with bold face emphasis mine

Matter of Fine State Bar 04-O-14366 Judge HonnCounts 2 & 4 false accusation of misappropriation.

In counts 2 and 4, the State Bar charges respondent with engaging in acts of moralturpitude by falsely stating, in his seventh section 170.3 challenge (exhibit 45), that


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Commissioner Mitchell misappropriated Settlement fund monies in the DiFlorescase.

Rules of professional conduct that prohibit false statements impugning theintegrity of judges . . . are not designed to shield judges from unpleasant or offensive

criticism. . . . (In the Matter of Anderson (Review Dept. 1997) 3 Cal. State Bar Ct.Rptr. 775, 782, quoting Standing Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430,

1437.) Thus, the State Bar Court cannot discipline an attorney for making astatement that attacks or impugns the honesty, motivation, integrity, orcompetence of a judicial officer (or other court official) unless (1) the statement isa false statement of fact (as opposed to opinion) and (2) the attorney made thefalse statement knowing it was false orwith reckless disregard for the truth. (In the Matter of Anderson, supra, 3 Cal. StateBar Ct. Rptr. at pp. 781-783.) Moreover, the State Bar must affirmatively prove, byclear and convincing evidence, the statements falsity. (Id. at p. 785.)

Offensive and impugning Statements that are not capable of being proved true orfalse [e.g., rhetorical hyperbole] cannot support the imposition of discipline. Likewise,statements of opinion are not disciplinable unless they imply or are based upon a falseassertion of fact. (In the Matter of Anderson, supra, 3 Cal. State Bar Ct. Rptr. at p. 786.)

When an individual states an opinion or conclusion and discloses the factual basisfor that opinion or conclusion, then the stated opinion or conclusion can only be readas the authors personal conclusion about the information presented, not as a statementof fact. ( Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 387.) That isbecause any unfounded, unjustified, or unreasonable opinion or conclusion will revealits own lack of merit when the author discloses the factual basis for the opinion or

conclusion. Thus, an attorney cannot be disciplined for offensive and impugningstatements of opinions or conclusions (even if they accuse a judicial officer ofcriminal activity) if the underlying facts are disclosed and are true. (StandingCommittee v. Yagman, supra, 55 F.3d at pp. 1439-1430; Franklin v. Dynamic Details,Inc., supra, 116 Cal.App.4th at p. 388.) This is true regardless of how reckless oroutrageous the opinion or conclusion might be.

Admittedly, respondents statement that Commissioner Mitchellmisappropriated settlement fund monies is derogatory and impugns the commissionersintegrity. In addition, it appears that respondent made the statement with recklessdisregard for the truth. The State Bar, however, failed to carry its burden to

affirmatively prove, by clear and convincing evidence, that the statement is false.Moreover, theState Bar failed to establish that the statement is an opinion or conclusion that is basedupon a false assertion of fact. Accordingly, even though this court is confident thatCommissioner Mitchell did not misappropriate any settlement monies in thesecases, this court must dismiss counts 2 and 4 with prejudice for want of proof .


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15The term misappropriation covers a wide range of conduct. At least in the context of attorney

discipline, not all misappropriations involve moral turpitude, dishonesty, or corruption. (In the

Matter of Hagan (Review Dept. 1992) 2 Cal. State Bar

16It is not sufficient that the State Bar establish that respondents accusation of

misappropriation is unsupported by any facts or that respondent mischaracterized hisinflammatory accusations at the hearing in this proceeding. The State Bar must prove the

accusation false.

This ends Honns description of his decisions on Counts 2&4. In the trial it washard for Fine to get his evidence to be considered. During the trial Fine didmention some of the items in his Blogonaut Comment. He was not cross-examined on them, nor did the judge explain why he thought these specificassertions were untrue even though the State Bar didnt dispute them.

Mitchell strains to stay on the DiFlores case.Fine vs Mitchell Appeal B153382A page 7/30 Judges Boren, Nott and DoiAs to Commissioner Mitchells authority to adjudicate the contempt, the ordernoted that pursuant to the first stipulation executed by the parties CommissionerMitchell was appointed and empowered to act as a temporary judge for all pretrialproceedings. The court concluded that [t]his litigation is still in pretrialproceedings. The Courts files reflect the following: No trials have yet been held.The defendants entered into a global settlement, paid approximately $9 million intoCourt similar to an interpleader, and were dismissed. Now there are 494 plaintiffs who

all have claims to that fund. None of those claims has received an individual final value,and if claims cannot be resolved by further settlement procedures then they will have togo to trial. ...

Fine vs Mitchell Appeal B153382A page 13/30 Judges Boren Nott and DoiThe record reflects that the stipulation executed by the parties when the casewas first filed empowered Commissioner Mitchell to conduct all pretrialproceedings. According to the order of contempt, Commissioner Mitchell views theproceedings occurring subsequent to entry of judgment in June 1999 as pretrialproceedings because no determination has yet been made concerning the amount ofmoney each class member will receive, and thus a trial may be required in order to

determine what allocation is to be made. Such an interpretation, we conclude, isstrained. What the language of the stipulation executed by the parties when the casecommenced makes clear is that when the class action lawsuit was initiated, the partiescontemplated that unless settled, the case would proceed to trial, and CommissionerMitchell could act as a temporary judge in connection with all pretrial proceedings.When the case settled, and an order of judgment was entered, the pretrial phaseof the action ended, as did Commissioner Mitchells authority to act as a temporary

judge pursuant to the first stipulation.


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Mathematicians comment on Mitchells Strained

ArgumentThis strained argument of Mitchells should disqualify him from hearing any case

as a judge, ever. If a mathematician made a statement like that, even whileproving a true proposition, it would end his career. Consider this, if a trial hadbeen held and resulted in the same judgement, as the settlement, would thepossibility of a trial between the different parties still be a reason for Mitchell tohang onto the case? Mitchells strained kind of reasoning is used wholesale bythe lawyers and consultants in EIRs in California, and in regulatory hearings.Hopefully it has not spread to the Federal Courts.

Review Dept State Bar Matter of Fine Judges Remke, Epstein, Stovitz page17 / 36Counts 2 and 4: Counts 2 and 4 are based on the seventh section 170.3 challenge,wherein respondent alleged that Commissioner Mitchell misappropriated settlementfunds in the DiFloresmatter. Specifically, count 2 alleges that the seventh challengewas frivolous because it was brought without any factual basis to support theallegation of theft and it was filed for the purpose of harassment. Although thatchallenge was meritless, as discussed above, it is part respondents overall misconductof repeatedly filing frivolous section 170.3 challenges for improper purposes. The factsin count 2 are not separate and apart from those used to support a finding of culpabilityunder count 1, and thus, we dismiss count 2 with prejudice as duplicative of count 1.

In count 4, the State Bar alleged that respondent violated section 6106 by filing theseventh challenge falsely alleging that Commissioner Mitchell misappropriatedsettlement funds when respondent knew or was grossly negligent in not knowing thatthe statement was false.Contrary to the hearing judges conclusion, we find that the record amplyestablishes the falsity of respondents allegation of misappropriation.

Respondent alleged that in a minute order Commissioner Mitchell solicits other counselto advocate Commissioner Mitchells position in the appeal.., by offering themcompensation from the Settlement Fund ..".. Based on his clearly erroneous

interpretation of the order respondent contended in his seventh challenge that"Commissioner Mitchell has mis-appropriated [sic] the Settlement Fund monies to payfor his defense in the appeal."Because Commissioner Mitchell merely suggested that a response to the appeal wasappropriate and that the responding party may be entitled to attorney fees, the Courtof Appeal concluded that his allegations regarding Commissioner Mitchells handling ofthe settlement fund were false. (Fine v. Superior Court, supra, 97 Cal.App.4th at p.670.) Based on our independent review of the record, we agree with this finding, and we


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conclude that respondent committed an act involving moral turpitude in violation ofsection 6106 as charged in count 4 by knowingly misrepresenting that CommissionerMitchell misappropriated settlement funds.

Three Paragraph WaldoHere we find the review judges using the Sign of Sophistry of an irrelevantparagraph (Count 3) inserted between closely related paragraphs (Counts 2 & 4)to change Honn's ruling on Count 2 by relating it to Count 1. Count 4 is reversedby examining the record by finding the State Bar did actually prove that Finemade a false accusation. Apparently, Fine's use of the word misappropriatedshould have been replaced by 'is misappropriating', since Fine makes statementslater, easily determined to be true or false, as to how exactly the funds monieswere used for purposes other than paying the class members or their lawyers.

Aggravated AmbiguityCommissioner Mitchell made a cameo appearance in Judge Honns courtroomon or about 11:11:30 on 1/25/2007 and announced that he was the complainingwitness. He just walked into the Courtroom just before a lunch break and wasasked who he was by Honn. Thus information contradicting sworn testimony wasput on the record in an informal manner, not under oath, and not subject to crossexamination.

The cameo assertion that Mitchell was the complaining witness contradicts

testimony given that the State Bar Initiated the investigation. From my reading ofthe trial there was evidence on both sides. Then there were two high officialsfrom the State Bar in the courtroom at about 10:21:25 on 1/26/2007 and Finesaid, let's ask them under oath to resolve this issue once and for all. Judge Honnrefused to call the witnesses, saying he was relying on the pattern of Fine'sactions and the issue of statute of limitations was not going sway him. So theprinciple that every accused has the right to face his accusers bites the dust.Also, the fact that Fine's clients might want to know the circumstances of whytheir lawyer was stripped from them was never considered.

The sophistry described here needs a name. I will christen itAggravatedAmbiguity. I will define it by an ambiguity introduced by a cameo appearancewhich is easily resolved, but is consciously left unresolved in spite of protestsfrom an interested party. I use the phase cameo appearance to refer toinformation entering a process in a way so that it can be used to prove a pointexparte to some official or interested party. An example of what I mean occurs inthe State Bars Notice of Disciplinary Complaints, NDC. Count 3 makes a cameo


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appearance between Count 2 and Count 4. Judge Honn says Count 2 and Count4 are the same, whereas the State Bar Review Court says that Count 2 is thesimilar to Count 1, and so it is a frivolous instead of a filing not providingevidence. This changes Fines status on Count 2 from not guilty to guilty.

Another example of Aggravated Ambiguity is what the stipulation actually said.Was Mitchell really violating the agreement or not? Well, where's the copy of thestipulation? It's in exhibit 45. But exhibit 45 only contains some relevant parts, sothe judge won't read it, because it's not the whole document. Then Fine says hehas a copy, but it's not certified. Then Honn asks, why didn't you put in a certifiedcopy in the record since it it is the foundation of your case? So Fine replies, wellthe Bar has a certified copy, why isn't it in the record? The answer comes back:You expect the prosecution to prove your case for you?(About 11:48:00 on1/26/2007)

Count 17That's Aggravated Ambiguity, but with an ironic chaser. Count 17 concernsMisrepresentation to a court. Apparently Fine didn't list all the grounds a judgeused for finding against Fine in a petition to a higher court. Honn ruled Fine notguilty on Count 17, saying Fines behavior is misconduct, but it doesn't rise to thelevel of moral turpitude. But I think it sure does rise to moral turpitude for aprosecutor to leave out exculpatory evidence. I imagine, based on the State Barnot proving Fines case and leaving out information in their document, that judge

Honn had to let the State Bar and his statement be misconduct below the level ofmoral turpitude. And consistency required that Fines conduct had to be belowthe level of morel turpitude. The State Bar did not appeal Count 19, but theReview Court reversed Fines conviction on Count 17, probably not aware of theexposure of Honn and the prosecutors on this point.

In any event, I thought the Review Court of Remke et al needed to reverse atleast one count in Fines favor to show they were impartial, so I looked forCounts where Honn convicted and they reversed. and I found some. Socomparing the State Bar Courts decision with the Review Courts decision, I think

we can see the underlying mathematical result that a false proposition can proveanything reflected in the real life world of the Law.

Harsh and SevereWhen I first read Judge Honns opinion, I thought it was full of sophistry withregard to Fines credibility. Then, as I read the the trial transcript, Honn


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comported himself so well, struggling to understand Fines motivation, that Ifound I couldnt believe that Honn wrote that opinion. In the trial, Honn said thatFine had abused the process, but that his credentials and career andcomportment in his courtroom leads him to the conclusion that Fine should notbe disbarred. His behavior with frivolous filings should be sanctioned. Honnbegged the prosecution and Fine to come to an agreement. It never happened.

The only point in the trial that I found where Judge Honn openly expressed hisskepticism about Fines truthfulness was when Fine was reading some judgesopinion. Honn interrupted Fine and accused Fine of reading a part of the opinionwhere the judge was quoting Fines own arguments. That reading may havebeen Judge Christiansons opinion, to which Honn referred to in his opinionbelow.

page 13 / 72 Matter of Fine State Bar 04-O-14366 Judge HonnThe Judicial Council assigned Judge Ronald Christianson of the San Bernardino

Superior Court to decide the question of Commissioner Mitchells disqualification under

respondents first challenge. In a ruling filed on January 7, 2000, Judge Christianson

held that Commissioner Mitchell was not disqualified from presiding over theDiFlores

case. (Exhibit 21.) In his ruling, Judge Christianson found that, even though

Commissioner Mitchells critique of respondents legal services as liability class counsel

inDiFlores had been harsh and the measures taken severe, it has not been established

that his actions were based on any improper motive. Certainly at some point a judges

frustration with the conduct of an attorney might rise to the level of personal

embroilment. However, taking the actions in this case within their appropriate context,neither personal bias nor embroilment have been established. Furthermore, Judge

Christianson found that A person aware of the facts would not reasonably entertain a

doubt as to Commissioner Mitchells ability to be impartial.

Ability to be ImpartialThe last quoted sentence in the above paragraph has too many words in it, a sign ofsophistry. Suppose the sentence meant: A reasonable person aware of the facts wouldnot doubt Commissioners Mitchells impartiality. Then it is false if only one reasonableaware person did doubt Mitchells impartiality. I guess Fine is ruled out because he is

implied to be not reasonable. But I also doubt Mitchells impartiality.

So maybe those extra words change the meaning of the sentence. Now the question is:Does Mitchell have the ability to be impartial? Which I take to mean: If he really wantsto, he can be impartial. Here again I doubt he has the ability to be impartial. My reasonis, because he advanced the strained argument queering the contextual meaning ofpretrial, he reveals himself as not intellectually honest, both to me and probably to anyother mathematician. Intellectual honesty is a prerequisite to clearing your mind of pre


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existing beliefs and opinions when confronted with opposing facts. Hence I dont thinkhe can solve difficult mathematical problems or be impartial in a case in which he haspre formed opinions. It is possible that brain research can experimentally prove mystatement. See the article in the New York Times by John Tierney, A clash of PolarFrauds and those who Believe .

Marina Strand Colony II vs LA County et alBelow is a timeline of the action against Fine in the case MSCII vs LA County etal. Most of it was excerpted from the timeline on the website Free Richard IFine . It details the prosecution of Fine by the Shores Counsel after he wasdropped from the case MSCII vs County et al, and its intimidating effect on hisclients and Shores opponents. This adds credence to the theory that the Shoreswas behind the State Bar Complaint against Fine. It shows how difficult it is forthe ordinary citizen to fight the combination of rich developers allied with the local

government and hired unethical consultants. We need advocates such as Fine todefend our homes and to keep our legal process fair and open to all,

I added more material on the outline concerning those events for which I havepersonal knowledge: The BOS hearing on December 16, 2009 and the effect ofFines disbarment and contempt conviction on MSCII.

01/2006Fine represents MSCII

02/06/06A California State Bar case against Fine (State Bar Court Case No. 04-O-14366)commenced on February 6, 2006, while Fine was opposing LA County and Del ReyShores and the Epsteins before the LA County Regional Planning Commission on onbehalf of clients Marina Strand Colony II Homeowners' Assoc. Sheldon H. Sloan, alawyer for Marina Pacific Associates, a lessee of land from LA County in Marina del Rey,controlled by Jerry B. Epstein, and a co-defendant with LA County in the case ofCoalition to Save the Marina et al v. LA County et al, who is also a member of the Boardof Governors of the State Bar and incoming president, does not disclose that he has afinancial interest in Fine being removed from the case as counsel for the plaintifs.

January, 2007LA Superior Court Judge Soussan G. Bruguera held the motion for reconsiderationbeyond the time period to maintain the right to receive a decision in the trial courtwhile still being able to timely file an appeal in the case of Coalition to Save the Marinaand Marina Tenants Association et al., v. County of Los Angeles.

Mathematics ofers a way to get out of this type of problem. Fine shouldhave filed a timely appeal based on the statement, mathematically


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http://sites.google.com/site/freerichardfine/Homehttp://sites.google.com/site/freerichardfine/Homehttp://sites.google.com/site/freerichardfine/Homehttp://sites.google.com/site/freerichardfine/Homehttp://www.nytimes.com/2009/09/08/science/08tier.html?_r=1&emc=eta1http://sites.google.com/site/freerichardfine/Homehttp://sites.google.com/site/freerichardfine/Homehttp://sites.google.com/site/freerichardfine/Homehttp://sites.google.com/site/freerichardfine/Homehttp://www.nytimes.com/2009/09/08/science/08tier.html?_r=1&emc=eta1http://www.nytimes.com/2009/09/08/science/08tier.html?_r=1&emc=eta1http://www.nytimes.com/2009/09/08/science/08tier.html?_r=1&emc=eta1http://www.nytimes.com/2009/09/08/science/08tier.html?_r=1&emc=eta1


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correct, that every statement in the Judges vacuous decision opposingthe motion is false and every statement supporting the motion is true.This is not strained, it is mathematically consistent. Anything is true ofany nonexistent thing.

05/15/07Supervisors vote to approve Del Rey Shores' EIR, despite receiving politicalcontributions from Epsteins near time of vote.

06/14/07On June 14, 2007, Fine filed a petition for writ of mandate in the case of Marina StrandColony II Homeowners Association v. County of Los Angeles seeking to overturn theSupervisors' approval of an EIR in favor of the redevelopment of the Del Rey Shoresapartment complex. The petition alleged that the EIR violated the CaliforniaEnvironmental Quality Act (CEQA) and that LA County did not receive any positivefinancial benefit from the project as required by CEQA.David P. Yafe was the judge assigned to the case.

10/10/07Fine saves MSCIIs law suit after missing a filing date by one day by admitting it was hisfault. Fine told me that he miscalculated by one day. An friend of Fines helped us getour case reinstated. Then we finally found a lawyer willing to take our case, Rose Zoiafrom Santa Rosa California. Ms. Zoia concentrated her arguments on the fourinadequately done alternative projects in the Shores EIR.

10/12/07State Bar orders Fine placed on "involuntary inactive enrollment".

Fine left the Marina Strand case on October 12, 2007, as a result of the actions ofCalifornia State Bar Court Hearing Department Judge Honn, who ordered Mr. Fine's Barmembership into "inactive" status, meaning he could no longer practice law.

01/08/08On January 8, 2008, Judge Yafe ordered that Fine, who was no longer the attorney forMarina Strand, pay sanctions of $1,000.00 and attorney's fees and costs to LA Countyand Del Rey Shores without having given Fine notice of the hearing and without Finebeing present at the hearing. Fine was sent notice by mail on January, 23, 2008.

Shortly thereafter, Fine made a "special appearance" in the Marina Strand case andmoved to dismiss the January 8, 2008, order. Judge Yafe took the motion "ofcalendar". On March 25, 2008, Fine served Judge Yafe with a CCP 170.3 "Objection"

based upon Judge Yafe's admitting in a hearing on March 20, 2008, that he receivedpayments from LA County. Judge Yafe did not make any response to the Objection,which failure to respond automatically disqualified him on April 8, 2008, by operationof law under CCP 170.3(c)(4). Judge Yafe, however, refused to leave the caserelating to Fine.

Fine told me that usually, a day late for filing a response is forgiven if it is a simpletype of mistake. The law that the late filer must pay attorneys fees exists to prevent


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purposeful delay of the process. So to follow the letter of the law, harsh and severe, ispermissible, but then it is not morel turpitude to remind the judge that he himself isviolating a more important law, by asking him to recuse himself. In addition, Yafeargued that Fine waited until Yafe had made an adverse ruling against Fine before hementioned recusal. But earlier Fine had to think of the interests of his clients, MSCIIwho would not have wanted their lawyer to irritate the judge.

06/02/08In June, 2008, Judge Yafe ruled against Marina Strand Colony on the issue of whetherthe new lease with Del Rey Shores, which was part of the project, would be of afinancial benefit to LA County. At the contempt trial, it was shown that no evidencewas presented in the "record" that a positive financial benefit to LA County wouldoccur. R. J. Comer, counsel for Del Rey Shores, testified that he did not review the newlease and could not cite to any evidence showing a benefit to the county.The "Draft Amended and Restated Lease Agreement" showed at section 4.4.1 that LACounty was giving Del Rey Shores an $11,050,000 Lessee Credit plus accrued interestfor the dedication of 54 low- and moderate-income apartments in the project. Under

the Mello Act, Del Rey Shores was required to dedicate these apartments without anylessee credit.Also at the contempt trial, Fine questioned Judge Yafe and got him to admit that

he did not consider the fact that two of the four Supervisors who voted on the Shoresproject on 05/15/07 had accepted contributions from the Shores people, and so thevote was illegal. Yafe said, how would I know? No one brought it up.However, Judge Yafe ruled in favor of recirculating the Shores EIR to analyze theimpact of the additional 25.000 cubic yards of waste material removal not mentionedin the DEIR.

10/10/08

Taxpayers win appeal in Sturgeon v. County of Los Angeles. Caselaw now confirmsthat payments to judges by counties are illegal under the California Constitution.

12/16/08On December 16, 2008, Supervisors Antonovich and Knabe voted for the approval ofthe recirculated EIR for the Del Rey Shores Project, after having accepted campaigncontributions from Del Rey Shores' developers.

On December 16, 2008, Supervisor Gloria Molina also voted for the approval of therecirculated EIR for the Del Rey Shores Project, doing so after having acceptedcampaign contributions to the "Gloria Molina 'Yes' on Measure U etc." fund from JerryB. Epstein - $1,250.00 on 10/8/08 and David Levine - $1,250 on 10/8/08, within six

weeks of the vote.Supervisor Gloria Molina did not disclose those contributions prior to, or at the time

of the hearing.

Maximum contribution made by Jerry B. Epstein on 8/14/08 to Antonovich for $1,000.Contribution by David O. Levine on 8/15/08 to Antonovich for $1,000. Contributionby Marina Properties, LLC on 3/18/08 (an entity controlled by Jerry Epstein) to Knabe


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for $1000. The law forbids contributions being made within one year of a vote on asubject in which the donor has an interest in the outcome.

Also at that hearing, Shores Counsel R. J Comer misleadingly implied, underoath, that the exported amount of material from the Shores project would not

exceed the 100.000 cubic yard threshold of exported material which triggers anapplication for a conditional Use Permit. Thus 92,000 cy of originally exportedmaterial and 25,000 cy of new exported material would not exceed 100,000 cy oftotal exported material. So much for the integrity of the Shores lawyers

11/03/08 to 01/08/2009 Fine's contempt trial.Meanwhile, in the Marina Strand case, Judge Yafe both presided as the judge andappeared as an adverse witness in the "contempt" proceedings against Fine whichbegan November 3, 2008, with an order to show cause containing 16 counts. The"contempt" proceeding was based upon allegations of actions occurring after JudgeYafe entered the January 8, 2008, void order in the Marina Strand case.

The charges included, but were not limited to, refusing to respond to questions at ajudgment enforcement hearing, making false statements in pleadings, making motionsfor reconsideration of the court's January 8, 2008, order, directly and indirectlyattacking the integrity of the LA Superior Court and the court [Judge Yafe], attackingthe integrity of the State Bar Court, attacking the integrity of Del Rey Shore's counsel,and holding himself out to practice law in violation of B&P Code 6126 and 6127,despite the fact he had been placed on involuntary inactive status by the State Bar ofCalifornia.

On the first day of trial, Judge Yafe testified, as an adverse witness called by Fine,that he had received the LA County payments, that he knew that LA County had cases

before him, that he did not disclose the payments on his Form 700 Statement ofEconomic Interests required to be filed with the State of California under the PoliticalReform Act, that he was a State of California employee and an elected state judgeunder the California Constitution, that he did not have any employment contract withLA County or agreement or arrangement to provide services to LA County, that hereported the LA County payments as "income" on his tax returns, that he did not putthe LA County payments into his "campaign contributions account" for his judicialelections, and that other than making a decision regarding the recirculation of the EIRin the Marina Strand case, he could not name any case in the last three (3) years wherehe decided the case against the interests of LA County.

After seven days of trial, Judge Yafe held Fine "not guilty" on 14 counts and "guilty"on 2 counts, one of which was refusing to answer questions at a judgmentenforcement exam regarding the unlawful order to pay attorney's fees, and the secondof holding himself out to practice law. Yafe made these rulings despite the illegalityof the January 8, 2008, order, and the testimony at trial of counsel Joshua L. Rosen thatthey were not relying on the January 8, 2008, order to enforce the judgment, that therewas no other order in evidence for Fine to pay fees or costs, the fact that theCalifornia Supreme Court had not ordered Mr. Fine "inactive," and neither statute reliedupon "State Bar orders".


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01/16/2009 From the Los Angeles Times

L.A. County's chief land use planner is firedBruce W. McClendon says he thinks he was terminated in retaliation for blowingthe whistle on county supervisors' aides.

By Garrett TherolfJanuary 17, 2009Bruce W. McClendon, the chief land use planner for Los Angeles County, wasfired Friday by the county's chief executive.

McClendon said he was called to a meeting with William T Fujioka and told hewas terminated from his $191,028-a-year job as head of the Department ofRegional Planning. Security officers later escorted him out of the building.

Fujioka said Friday that personnel rules barred him from publicly disclosing the

reason behind McClendon's termination, which was effective immediately.McClendon held the job for two years and will receive severance pay for theequivalent of six months of work, Fujioka said.

McClendon, reached by telephone, said he believed he had been fired inretaliation for blowing the whistle on county supervisors' aides. He said he hadgiven Fujioka information that showed that aides to the county supervisorsroutinely sought to improperlyinfluence decisions on whether to permitdevelopment plans.

"It was illegal, and they can go to jail for doing it," said McClendon, 62. He saidhis meetings with Fujioka in recent weeks made it clear that he was likely tobe fired. He said he recently began consulting with attorneys in preparation

for filing a whistle-blower retaliation lawsuit. ...

January 27, 2009The BOS ratifies their December 16 decision to permit the Shores development. Their

Final Actions and Supporting papers were not in order. For example:

The final hearing was on January 27,2009. The covering letter was written byRaymond Fortner. He signed it, but the letter referred to a different project. Thiswas never publicly corrected, and the Final Action, aka Minutes, never appearedon line or were sent to the testifiers. What is going on here? In astrangeparallelwith Bruce McClendon, Fortner soon resigned form his chiefCounty counsel office. Where is the Final Action? (Note: There was no postedFinal Action on the BOS website for several months, before it appeared with no


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explanation of the delay. This paragraph was copied from my letter assisting theAuditor-Controller s investigation of the Bruce McClendon firing.)

Sometime before the January 27, 2009The MSCII, on the advice of their new counsel Rose Zoia, filed an appeal to the portion

of Yaffes June 2, 2008 decision appealing those portions of his rulings that were foundagainst us. At the hearing, the judge had already made his decision. He told the Shores lawyers that a 28% increase in exported material was too much an increase withouthaving studied its impact. He told our lawyer that the County wanted to use the Marinaas a cash cow, and so any alternative project would earn less than the maximumincome, and therefore the alternative projects did not meet the goal of the proposedproject.

After the BOS re certified the EIE, Zoia suggested we should appeal that re certification.The MSCII board of directors declined to do so. They mentioned this in passing at ageneral meeting of the association. I said that they did not meet the conditions of the

Judges order, and I said I would deliver a letter to the Judge. I wrote up a document onmy website which gives a more complete description of the issues. Click on the first linkthere to find my letter to Yaffe. His law clerks took it in to him and then returned it. TheJudge would not accept it. I learned several months later, to my amazement, that a

judge gives an order, and is not concerned whether it is followed or not.

Later, the Appellate Court denied our appeal, ruling that our appeal was moot since wedid not appeal the BOS re certification of the EIR.

02/23/09"CA Supreme Court Orders Disbarment of Attorney Richard I. Fine"

03/04/09Final Contempt Hearing before Judge Yafe. Fine held in contempt after prosecution byR.J. Comer and Joshua L. Rosen (originally the attys for the Epsteins), after agreementwith Judge Yafe that they now also represent him and the superior court. FINEHANDCUFFED AND ESCORTED AWAY BY THREE UNIFORMED AND SIX PLAINCLOTHES"WARRANT DETAIL" SHERIFF'S DEPUTIES.

Conclusion

In view of the jailing of Richard Fine, and the timeline above, a predictable chainof events occurred. The success of the Shores has lowered the standards of the

EIRs. The consultants are creating EIRs with Baldos instead of Waldos. Theerrors are obvious. You no longer need to have a table of Sun elevations andazimuth angles and use trigonometry to show the shadow studies are wrong. Allyou need to know is that there is no such day as October Solstice, a day that wasthe most critical day for the shadow study per the EIR, so they show the shadowsfor every hour on that mythical October day. The traffic study does not include animportant intersection right in front of my condo on any of their traffic trip maps,


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http://web.mac.com/dhg7/Site/Blank_files/Soiling%2520Law%252002192009.pdfhttp://web.mac.com/dhg7/Site/Blank_files/Soiling%2520Law%252002192009.pdfhttp://web.mac.com/dhg7/Site/Blank_files/Soiling%2520Law%252002192009.pdf


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and uses tables which implies a great improvement in the LOS at mostintersections. The haul route for the trucks of the Woodfine & Neptune projectsand the Shores becomes ambiguous on the Noise Impact study on pages withsimultaneously crossed out and underlined words. The original document is notspecified and in fact there is no original document. there does not seem to be anintension of requesting a Conditional Use Permit for exporting more than 100,000cubic yards of material. the lawyers representing this project are the same oneswho participated in the Contempt action against Fine, seeking to destroy him andmisrepresenting the necessity for the Shores Project to apply for an Off-Sitetransport Grading CUP. The lawyers for the Shores are also the lawyers for theNeptune & Woodfin projects. Their success in December translates into evenmore extravagant behavior in the current EIRs, with the knowledge they can getaway with anything. So the Shores strategy of destroying the career of Finethrough disbarment and bankruptcy has succeeded in frightening away local

lawyers and intimidating homeowners such as Marina Strand colonies I, II, III, IVand environmental groups such as the Coalition to Save the Marina. And theiractions after the disbarring of Richard Fine as well as their influence at thebeginning of the process, and the Aggravated Ambiguity of who started the Barinvestigation of Fine and why point to the people who benefitted most from theproceedings against Fine.


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PROOF OF SERVICE

STATE OF CALIFORNIA,

COUNTY OF LOS ANGELES

I am Dan Gottlieb. My mailing address is__________________________.

On September ____, 2009, I served the foregoing document described as

AMICUS CURIAE BRIEF

on interested parties in this action by depositing a true copy thereof, which was

enclosed in a sealed envelope, with postage fully prepaid, in the United States

Mail, addressed as follows:

Richard I. FineInmate ID # 1824367c/o Men's Central Jail


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441 Bauchet StreetLos Angeles, CA [email protected]

Counsel for Appellant Sheriff of Los Angeles County (Leroy D. Baca):

Aaron Mitchell FontanaPaul B. BeachLAWRENCE BEACH ALLEN & CHOI, PC100 West Broadway, Ste. 1200Glendale, CA 91210-1219

Counsel for Appellants Judge David P. Yaffe and LA County Superior Court:Kevin M. McCormickBENTON, ORR, DUVAL & BUCKINGHAM39 N. California Street

P.O. Box 1178Ventura, CA 93002

Ninth Circuit Court of Appeals:Molly Dwyer, Clerk of CourtU.S. Court of Appeals for the Ninth Circuit95 Seventh StreetSan Francisco, CA 94103Case No. 09-56073

Richard I. Fine v. Sheriff of Los Angeles County, et al.Dr. Fine's Support Team:[email protected]


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mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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Dated this_______ day of September, 2009 Respectfully submitted: By

__________________________________

Daniel Henry Gottlieb


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Documents

Amicus Curiae Brief for Richard Isaac Fine